FRYER v. PROCTER & GAMBLE COMPANY et al, No. 1:2011cv00147 - Document 26 (M.D. Ga. 2013)
Court Description: ORDER granting 15 Motion for Judgment as a Matter of Law; denying 16 Motion for Judgment as a Matter of Law. Judgment shall be entered in favor of Defendants. Ordered by Judge W. Louis Sands on 9/25/13 (wks)
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FRYER v. PROCTER & GAMBLE COMPANY et al Doc. 26 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E MID D LE D ISTRICT OF GEORGIA ALBAN Y D IVISION CHERYL ANN FRYER, : : Plaintiff, : : v. : : THE TRUSTEES OF THE PROCTER : & GAMBLE LONG TERM DISABILITY : ALLOWANCE POLICY and THE : PROCTER & GAMBLE LONG TERM : DISABILITY ALLOWANCE POLICY, : : Defendants. : : CASE NO.: 1:11-CV-147 (WLS) ORD ER Before the Court are Plaintiff’s and Defendants’ Motions for J udgm ent. (Docs. 15, 16.) For the reasons that follow, Defendants’ m otion is GRAN TED , and Plaintiff’s m otion is D EN IED . I. Pro ce d u ral Ba ckgro u n d Plaintiff Cheryl Ann Fryer (Fryer) brought suit against the Procter & Gam ble Long Term Disability Allowance Policy and its trustees (the Trustees) under the Em ployee Retirem ent Security Act of 1974 (ERISA). She seeks to recover disability benefits from an em ployee benefits plan sponsored by her em ployer, the Procter & Gam ble Com pany (P & G). Her prim ary claim is that the Trustees wrongfully classified her chronic pain syndrom e and post lum bar lam inectom y syndrom e as a partial disability, rather than a total disability, under the plan term s. On October 15, 20 12, the Parties filed cross m otions for judgm ent. (Docs. 15, 16.) In support of their m otions, the Parties refer to the undisputed adm inistrative record. 1 Dockets.Justia.com After a review of the m otions and record, the Court grants judgm ent in favor of the Trustees. II. Fin d in gs o f Fa ct Fryer is a form er paperm aking technician at P & G in Albany, Georgia. (PG 427.) During her em ploym ent, she was a participant in the Procter & Gam ble Disability Benefit Plan (the Plan). The Plan provided fifty-two weeks of short-term disability paym ents for partial disabilities. (PG 463.) It defined a “Partial Disability” as follows: “Partial disability ” means a m ental or physical condition resulting from an illness or injury because of which the Participant is receiving m edical treatm ent and cannot perform regular duties of his or her current job but can perform other roles at the sam e site or other jobs outside of the Com pany. Thus, a condition of Partial Disability does not necessarily prevent the Participant from perform ing useful tasks, utilizing public or private transportation, or taking part in social or business activities outside the hom e. (PG 453.) The Plan defined a “Total Disability” as: [A] m ental or physical condition resulting from an illness or injury which is generally considered totally disabling by the m edical profession and for which the Participant is receiving regular recognized treatm ent by a qualified m edical professional. Usually, Total Disability involves a con dition of such severity as to require care in a hospital or restriction to the im m ediate confines of the hom e. The Trustees reserve the right to determ ine what is considered as “regular” and “recognized treatm ent.” The Plan gave the Trustees discretionary authority to interpret the Plan, review requests for benefits, and determ ine eligibility for ben efits. (PG 465.) The Plan also stated, “It is the Participant’s burden to establish by objective m edical evidence that he or she is either totally or partially disabled, as the term s are defined in the plan.” (PG 461.) In 20 0 7, Fryer began suffering back and hip pain. She underwent back surgery in J une 20 0 7. After the surgery, Fryer experienced lower back pain that radiated to her 2 legs. In Decem ber 20 0 7, she returned to light-duty work at P & G and to full-duty work in March 20 0 8. Throughout 20 0 8, however, Fryer continued to experience back and hip pain. In Septem ber 20 0 9, Fryer left work. She began receiving total disability benefit paym ents Septem ber 14, 20 0 9, for chronic pain syndrom e and post lum bar lam inectom y syndrom e. (PG 5.) By letter dated J anuary 19, 20 0 9, the Trustees inform ed Fryer she would begin receiving partial disability instead of total disability paym ents beginn ing Decem ber 21, 20 0 9. (PG 393.) In support of this determ ination, the Trustees noted that “[y]our treating physician, Dr. Charity Wilson, has indicated that you can return to work with the following restrictions of eight hours per day, five days per week with no lifting greater than 20 pounds, no standing greater than 5 m inutes, no sitting greater than 10 m inutes, and no bending or stooping.” (Id.) Fryer received partial disability paym ents from Decem ber 21, 20 0 9 through March 30 , 20 10 . (PG 236.) She returned to work March 31, 20 10 , after her departm ent indicated it could accom m odate her restrictions. (Id.) Fryer soon left work again. In an April 28 , 20 10 letter, the Trustees again determ ined Fryer was partially disabled and entitled to receive ben efits, com m en cing April 5, 20 10 . (Id.) In April and May 20 10 , Dr. Lam ar Moree, a pain specialist, noted that Fryer’s pain had worsen ed sin ce returning to work. (PG 287.) On August 30 , 20 10 , Fryer appealed the Trustee’s determ ination that she was partially disabled. (PG 229– 35.) Dr. Wilson, who practices fam ily m edicin e, subm itted a Long-Term Disability Status Report on Septem ber 23, 20 10 . (PG 10 4.) In her report, Dr. Wilson concluded that Fryer had lum bar disc disease and a poor prognosis. She could not return to work 3 in any capacity. Dr. Wilson further reported that the condition required m edications that m ay sedate Fryer. The Trustees referred Fryer’s file and record to Dr. Milton Klein, who specializes in osteopathy, for a peer review. (PG 443– 46.) On Septem ber 28, 20 10 , after a review of Fryer’s history and m edical reports, Dr. Klein concluded, “there is no objective m edical inform ation docum ented to substantiate an inability to work in an y capacity including sedentary at P&G or with any other em ployer.” In Dr. Klein’s opinion, Fryer could perform full-tim e light duty work. Dr. Klein also opined that Fryer could work April 15, 20 10 forward with restrictions. Patrick Gay, a registered physical therapist, perform ed a functional capacity evaluation (FCE) on Fryer Novem ber 4, 20 10 . (PG 429– 31.) Gay noted that Fryer “dem onstrated pain behaviors such as crying, grim acing, sighing and guarded m ovem ents,” but also dem onstrated “dram atic effect and fluctuation of pain,” “which do not correlate with the anatom y and physiology of pain.” Further, Fryer “was willing to attem pt m ost tests but was not able/ willing to com plete the test and proceed to the next higher weight or next test.” He concluded, “The results of this evaluation indicate that [Fryer’s] FCE test is invalid, does not represent her m axim um physical capabilities and cannot be used for watching her abilities with her job requirem ents.” Nevertheless, Gay reported that “[t]hough the results of the FCE were clearly skewed by sym ptom exaggeration and self lim iting behavior [sic], it is m y professional opinion that [Fryer] classifies for work in light category.” On Novem ber 16, 20 10 , following an in-person exam ination, Dr. Mark Wolgin of Orthopedic Associates in Albany, Georgia, subm itted an indepen dent m edical evaluation for Fryer. (PG 436– 40 .) He reported that Fryer had herniation of various discs and 4 residual discogen ic pain. He opin ed that “she basically needs to live with this condition or have it fixed.” Dr. Wolgin felt Fryer would be a can didate for surgery. He concluded that “part-tim e sedentary work would be som ething she could poten tially do.” He added, “I believe that once her sym ptom s began to be m ore severe in the sum m er of 20 0 9, she could have participated in desk-type work without lifting or frequent bending or twisting. She probably could have lifted 5-10 pounds occasionally and could probably continue with that work through the present.” Dr. Wolgin also noted that the FCE was invalid because she was asked to perform tests that would not have been attem pted on a patient with spinal pathology. On Decem ber 17, 20 10 , the Trustees denied Fryer’s appeal. (PG 62– 63.) The denial letter explained that the results of the independent m edical evaluation indicated that Fryer could perform sedentary work. In a J anuary 7, 20 11 letter, the Trustees further inform ed Fryer she had exhausted her fifty-two weeks’ partial disability paym ents on Decem ber 22, 20 10 . (PG 61.) Fryer appealed this determ ination J uly 8, 20 11. (PG 11.) In support of her appeal, Fryer subm itted a Residual Functional Capacity Questionnaire from Dr. Wilson. Dr. Wilson reported that Fryer experienced constant pain and could sit and walk less than two hours each workday. At the direction of counsel, Fryer underwent a FCE with Keith Blankenship, a physical therapist. (PG 13– 17.) Blankenship reported that Fryer “did not dem onstrate any com petitive work ability at this tim e.” “Her m axim um Standing/ Walking tolerance is only 45 m in. and her m axim um Sitting tolerance is only 60 m ins., and she has to be able to control her sym ptom s by getting off her feet or lying down when she needs to be 5 able to do so.” Blankenship also noted that Fryer could frequently sit and occasionally stand and walk. He reported she was capable of driving short distances. Fryer’s counsel also referred Fryer’s m edical file to Earl Thom pson, a vocational consultant. (PG 38 – 48.) Thom pson opined that, “within a reason able degree of vocational certainty,” Fryer was incapable “of perform ing the essential job functions of any full-tim e job at any skill or physical dem and level.” After Fryer’s appeal, Dr. Michael Errico, an orthopedic surgeon, reviewed Fryer’s file at the Trustee’s request. (PG 52– 58.) In an August 2, 20 11 letter, Dr. Errico reported that “[t]he m edical inform ation supports that she should be able to perform a sedentary job.” He also concluded, “The m edical reports do not substantiate an inability to work with or without restrictions from 12/ 22/ 10 on. . . . With a sedentary job it should be reasonable for her to sit for a period of one hour, with ability to change position or m ove around as necessary every hour.” He concluded that Fryer “was not totally disabled (i.e. totally precluded from work activity) during the tim e period from 12/ 22/ 10 forward.” Upon receipt of Blankenship’s and Thom pson’s reports, Dr. Errico wrote an addendum to his first review. In the addendum , he reported that “[t]he additional inform ation does not alter m y opinion from the original report.” He concluded, “I do not think the records provided justified their use of the term ‘total disability,’ as there is no m edical eviden ce to support that the claim ant requires care in the hospital and there is no indication that she was restricted ‘to the im m ediate confines of the hom e.’” On August 25, 20 11, the Trustees denied Fryer’s appeal. III. D is cu s s io n “In an ERISA ben efits denial case . . . in a very real sense, the district court sits m ore as an appellate tribunal than as a trial court. It does not take evidence, but, rather, 6 evaluates the reasonableness of an adm in istrative determ in ation in light of the record com piled before the plan fiduciary.” Curran v. Kem per N at’l Servs., Inc., No. 0 4-140 97, 20 0 5 WL 894840 , at *7 (11th Cir. Mar. 16, 20 0 5) (quoting Leahy v. Ray theon Co., 315 F.3d 11, 17– 18 (1st Cir. 20 0 2)). A plan adm inistrator’s adverse ben efits determ ination is entitled to deference when the adm in istrator possesses discretionary authority. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 10 1, 111 (1989). Although ERISA itself does not provide standards for reviewing a plan adm inistrator’s discretionary decision, the Eleventh Circuit, relying on Suprem e Court precedent, has developed a six-part approach: (1) Apply the de novo standard to determ ine whether the claim adm inistrator's benefits-denial decision is “wrong” (i.e., the court disagrees with the adm in istrator's decision); if it is not, then end the inquiry and affirm the decision. (2) If the adm inistrator's decision in fact is “de novo wrong,” then determ ine whether he was vested with discretion in reviewing claim s; if not, end judicial inquiry and reverse the decision. (3) If the adm inistrator's decision is “de novo wrong” and he was vested with discretion in reviewing claim s, then determ ine whether “reasonable” grounds supported it (hence, review his decision under the m ore deferential arbitrary an d capricious standard). (4) If no reasonable grounds exist, then end the inquiry and reverse the adm in istrator's decision; if reasonable grounds do exist, then determ ine if he operated under a conflict of interest. (5) If there is no conflict, then end the inquiry and affirm the decision. (6) If there is a conflict, the conflict should merely be a factor for the court to take into account when determ in ing whether an adm inistrator's decision was arbitrary an d capricious. Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350 , 1355 (11th Cir. 20 11). “At each step, the court m akes a determ ination that results in either the progression to the next step or 7 the end of the inquiry.” Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227, 1231– 32 (11th Cir. 20 0 6). A. W h e th e r th e Tru s te e s ’ d e cis io n w as w ro n g The Court first analyzes whether the Trustees’ decision was wrong. “A decision is ‘wrong’ if, after a review of the decision of the adm in istrator from a de novo perspective, ‘the court disagrees with the adm inistrator’s decision.’” Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241, 1246 (11th Cir. 20 0 8) (quoting W illiam s v. BellSouth Telecom m ., Inc., 373 F.3d 1132, 1138 & n.8 (11th Cir. 20 0 4)). After a review of the record, the Court concludes that the Trustee’s determ ination was de novo correct. The adm inistrative record reveals that Fryer was not totally disabled. The Plan defined a “Total Disability” as an illness or injury “generally considered totally disabling by the m edical profession.” It further states, “Usually, Total Disability involves a condition of such severity as to require care in a hospital or restriction to the im m ediate confines of the hom e.” In contrast, a “Partial Disability” m eans a m ental or physical condition resulting from an illness or injury because of which the Participant is receiving m edical treatm ent and cannot perform regular duties of his or her current job but can perform other roles at the sam e site or other jobs outside of the Com pany. Thus, a condition of Partial Disability does not necessarily prevent the Participant from perform ing useful tasks, utilizing public or private transportation, or taking part in social or business activities outside the hom e. (453.) At least three specialists opined that Fryer could perform sedentary work. Following an in-person exam ination, Dr. Wolgin, an orthopedist, felt that “the patient could return any tim e [to work] if sedentary work were available.” He opined that “once her sym ptom s began to be m ore severe in the sum m er of 20 0 9, she could have participated in desk-type work without lifting or severe bending or twisting. She probably could have 8 lifted 5-10 pounds occasionally and could probably continue with that work through the present.” Despite these conclusions, Fryer dwells on Dr. Wolgin’s statem ent that “parttim e sedentary work would be som ething she could potentially do” to support a claim that she was totally disabled. Dr. Wolgin, however, m ade that statem ent as a recom m endation for a transitional work schedule. He also said no less than seven tim es that Fryer could probably do sedentary work. During a peer review, Dr. Klein, who practiced osteopathic m edicine and spinal cord rehabilitation, found there to be “no objective m edical inform ation docum ented to substantiate an inability to work in any capacity including sedentary at P&G or with any other em ployer.” Dr. Errico, an orthopedic surgeon, opined that Fryer was not totally disabled. He concluded that “[t]he m edical inform ation supports that [Fryer] should be able to perform a sedentary job.” He also believed that Blankenship’s and Thom pson’s uses of the term “total disability” were unwarranted. In contrast, although Dr. Wilson, Blankenship, and Thom pson all concluded that Fryer was incapable of work, none of these professionals were as qualified to opine on orthopedic issues as Drs. Wolgin and Errico. Dr. Wilson practices fam ily m edicine, an d Blankenship and Thom pson are not physicians. Moreover, Blankenship’s work evaluation notes that Fryer could engage in “frequent” sitting and “occasional” standing and walking. He also noted she could drive short distances. Blankenship found that Fryer could sit for 60 m inutes and “has to be able to control her sym ptom s by getting off her feet or lying down when she needs to be able to do so.” Thus, Blankenship’s findings are arguably consistent with the conclusion that Fryer could do sedentary work. In short, a m ajority of the evidence does not support a finding that Fryer was totally disabled. The Social Security determ ination does not change the Court’s conclu- 9 sion, as it involved different question. The evidence strongly supports a determ ination that Fryer could perform work within and outside of P & G, could engage in other useful tasks, and was capable of using private transportation. In contrast, although it does not autom atically disqualify her from long-term benefits, there is little to no evidence Fryer was confined to the hom e or needed care in a hospital. B. W h e th e r th e Tru s te e s ab u s e d th e ir d is cre tio n Even if the Trustees’ determ ination was de novo wrong, it was not arbitrary, capricious, or an abuse of discretion. The Trustees had discretion to interpret the plan, so their decision m ust be accorded deferen ce. Blankenship, 644 F.3d at 1355 (citations om itted). “As long as a reasonable basis appears for [the] decision . . . it m ust be upheld as not being arbitrary or capricious, even if there is evidence that would support a contrary decision.” W hite v. Coca-Cola Co., 542 F.3d 8 48, 8 57 (11th Cir. 20 0 8) (quoting Jett v. Blue Cross & Blue Shield of Ala., Inc., 890 F.2d 1137, 1140 (11th Cir.1989)). As previously noted, the adm inistrative record contains am ple evidence to provide a reasonable basis for classifying Fryer as partially, rather than totally, disabled. The general thrust of Dr. Wolgin’s report was that Fryer had functional im pairm ents but could perform a sedentary job. Likewise, Dr. Errico, an orthopedic surgeon, concluded “it is clear that [Fryer] has problem s with her neck and back,” but the “m edical inform ation supports that she could be able to perform a sedentary job.” He also opined that “[t]he m edical records do not substantiate an inability to work with or without restrictions.” “With a sedentary job it should be reasonable for her to sit for a period of one hour, with ability to change position or m ove around as n ecessary every hour.” Blankenship, Fryer’s consultant, independently reached an alm ost identical conclusion regarding Fryer’s sittin g ability. 10 Likewise, Dr. Klein found that “there is no objective m edical inform ation docum ented to substantiate an inability to work in any capacity including sedentary work.” Dr. Klein opined that Fryer could perform light-duty work. He concluded, “Based upon m y review of the objective m edical inform ation, the claim ant is capable of working with restrictions.” Clearly, Fryer prefers the conclusions of her treating physicians. But unlike Drs. Wolgin and Errico, Fryer’s treating physicians are not orthopedists. And “[p]lan adm inistrators need not accord extra respect to the opinions of a claim ant’s treating physicians.” Blaneknship, 644 F.3d at 1356 (citing Black & Decker Disability Plan v. N ord, 538 U.S. 822, 830 – 31 (20 0 3)). “It is entirely appropriate for an adm inistrator to rely on written reports of consultants who have done paper reviews of a claim ant’s m edical records.” McInvale v. Metropolitan Life Ins. Co., No. 5:0 7-cv-459, 20 0 9 WL 2589521, at *8 (M.D. Ga. Aug. 18, 20 0 9) ((quoting Hufford v. Harris Corp., 322 F. Supp. 2d 1345, 1359 (M.D. Fla. 20 0 4)). The Trustees’ determ in ation was not unreasonable sim ply because they credited the conclusions of one expert over another. See Param ore v. Delta Air Lines, Inc., 129 F.3d 1446, 1452 (11th Cir. 1997) (holding that plan adm inistrator’s denial of long-term disability benefits was reasonable even though two physicians provided inconsistent statem ents about whether the claim ant could perform sedentary work). Furtherm ore, it is sim ply not true, as Fryer claim s, that the Trustees ignored evidence from her consultants and treating physicians. To the contrary, the Trustees explicitly considered the reports from her treating physicians and provided these m aterials to their consultants. (E.g., PG 5.) One denial letter states that the “Trustees have reviewed all of the inform ation provided to them in support of your claim for disability 11 benefits.” (PG 62.) Dr. Errico even m ade an addendum to his initial review after the Trustees gave him Blankenship’s and Thom pson’s reports. Fryer also argues that the Trustees’ decision was arbitrary and capricious because they relied on a physician, Dr. Klein, who couched his opinions in whether “objective eviden ce” supported a finding that she was totally disabled. This argum ent is unpersuasive. Under the Plan, it was Fryer’s burden “to establish by objective m edical evidence that . . . she is either totally or partially disabled, as the term s are defined in the Plan.” (PG 461 (em phasis added).) Because the Plan required proof by objective m edical evidence, it would not have been unreasonable to discount subjective reports of pain. See Doy le v. Liberty Life Assur. Co. of Boston, 542 F.3d 1352, 1358 (11th Cir. 20 0 8) (holding that it was not unreasonable for plan adm inistrator to ignore intangible pain and suffering when plan called for proof of “objective m edical eviden ce”). In any event, there is no eviden ce the Trustees gave special weight to Dr. Klein’s report. Drs. Wolgin and Errico both considered Fryer’s prescription drug use and subjective reports of pain. Given the wealth of eviden ce supporting that Fryer could perform sedentary work, the Court cannot conclude that the Trustees’ determ ination was arbitrary and capricious, even taking into account the possibility of a conflict of interest. 1 1 But see Gilley v. Monsanto Co., 490 F.3d 848, 856 (11th Cir. 20 0 7) (“Our circuit law is clear that no conflict of interest exists where ben efits are paid from a trust that is funded through periodic contributions so that the provider incurs no im m ediate expense as a result of payin g benefits.”). 12 IV. CON CLU SION For those reasons, Defendants’ Motion for J udgm ent (Doc. 15) is GRAN TED . Plaintiff’s Motion for J udgm ent (Doc. 16) is D EN IED . J udgm ent shall be entered in favor of Defendants. SO ORD ER’ED , this _ 25th_ day of Septem ber 20 13. _ / s/ W. Louis Sands _ TH E H ON ORABLE W . LOU IS SAN D S, U N ITED S TATES D ISTRICT COU RT 13
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